The U.S. Court of Appeals for the Seventh Circuit upheld an Indiana law protecting minors from gender transition procedures last Wednesday. The appellate court had stayed a preliminary injunction that blocked all of the law except its prohibition on gender transition surgeries in a simple order on February 27, allowing the law to take effect. Wednesday’s ruling (K.C. v. Medical Licensing Board of Indiana) included a 50-page opinion for why the court reversed the lower court ruling, vacated the preliminary injunction, and remanded the lawsuit back to the district court.

The ruling is “a huge win for Hoosiers,” declared Indiana Attorney General Todd Rokita (R) “and will help protect our most precious gift from God — our children. By rejecting the injunction against our commonsense state law, dangerous and irreversible gender-transition procedures for minors will remain banned in Indiana.”

The Indiana legislature is one of 26 that have enacted protections for minors from gender transition procedures. On the day the bill (SB 480) was into law, April 5, 2023, the ACLU sued the members of the Indiana Medical Licensing Board. “They alleged SEA 480 violated the Equal Protection Clause, substantive due process, the First Amendment’s Free Speech Clause, the Affordable Care Act, and the Medicaid statute,” according to the circuit court.”

On June 16, 2023, Trump-appointed U.S. District Court Judge James Patrick Hanlon issued a preliminary injunction against the Indiana law. However, his opinion addressed only the Equal Protection and free speech claims, finding that the law failed to meet the heightened scrutiny standard.

In a 2-1 opinion on Wednesday, a three-judge panel of the Seventh Circuit reversed Hanlon’s decision. The opinion was joined by Judge Kenneth Francis Ripple, a Reagan appointee on senior status, and Judge Michael Brennan, a Trump appointee, while Biden appointee Judge Candace Jackson-Akiwumi dissented.

Regarding Equal Protection, the law’s “classifications based on age and medical diagnosis do not merit higher scrutiny,” wrote the court. “The key issue in this appeal is whether SEA 480 classifies based on a protected class, and that issue requires us to answer two questions. First, does SEA 480 classify based on sex? … Second, is transgender status a quasi-protected class warranting a level of scrutiny higher than rational basis?” The court answered both questions negatively.

First, the law “bars gender transition procedures regardless of whether the patient is a boy or a girl: Nobody may receive the treatment the state has chosen to regulate. So, sex does not indicate on what basis treatment is prohibited,” they reasoned, citing U.S. Supreme Court precedents Geduldig v. Aiello (1974) and Dobbs v. Jackson Women’s Health (2022). Although the ACLU tried to insert the reasoning from Bostock, the court declared with finality, “Bostock is of no use when interpreting the Equal Protection Clause. That clause does not use the word ‘sex.’ … The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.”

Second, the court rejected the notion that people who identify as transgender are a “quasi-suspect class.” “Even if transgender status were a quasi-suspect class,” they wrote, the Indiana law “regulates gender transition procedures,” not individuals. “The law allows mental health care, does not limit an adult’s access to gender transition treatment, and does not prohibit treatment focused on non-medical affirmation of the individual’s gender identity,” they said, and it focuses exclusively “on the medically induced part of a gender transition, which is the part of the transitioning process Indiana believes is too dangerous and novel to be left unregulated.”

Regarding Substantive Due Process (essentially a parental rights argument), the court argued that everything depended on “what right is at issue.” The ACLU wanted to define the right as a parent’s right “to make medical decisions for their children” or “to consent to medical care for their child.” The court rejected both “broad” options because, as Dobbs explained, defining a right this broadly can lead to problems. Instead, they chose to define the issue as a parent’s right “to access gender transition procedures for their children” and concluded that such a right is not “‘deeply rooted in [our] history and tradition’ and ‘essential to our Nation’s scheme of ordered liberty.’” In fact, “the first report of a minor transgender patient treated with puberty blockers was in the Netherlands in 1998,” the same year that “WPATH approved its first treatment guidelines for children,” they recorded.

Regarding free speech, the ACLU challenged the Indiana law’s secondary liability provision, which says that practitioners “may not aid or abet” another practitioner in providing prohibited gender transition procedures to minors, such as by referring to them. However, the Seventh Circuit was highly skeptical of this argument. “It is not clear that the law prohibits anything other than speech used ‘as an integral part of’ unlawful conduct. … Such speech ‘is historically recognized as unprotected.’” Alternatively, the reasoned, even if the law does burden speech, it only does so “incidentally because it targets conduct: facilitating the provision of gender transition procedures.”

“Appellees ask us to constitutionalize and thus take from Indiana the power to regulate a new and heavily debated medical treatment with unknown risks,” concluded the court. “If we hasten to set one side of the debate into constitutional stone, we will prevent Indiana from responding to tomorrow’s insights. Our Constitution is not so quick to act. By design, it provides a solution to just a few difficult questions and leaves the rest to the people.” Consequently, they reversed the lower court’s order and vacated the preliminary injunction, remanding the case for further proceedings.

Jackson-Akiwumi disagreed with the majority opinion “for largely the same compelling reasons explained by dissenting judges around the country,” which she cited in a footnote but did not restate. Instead, she limited her opinion to consider a “question no court of appeals has addressed to date: whether a state law construed to prohibit medical providers from aiding and abetting out-of-state providers in the provision of gender transition treatment to minors violates the First Amendment.” The majority responded that this dissent “focuses entirely on an issue that neither party raised in the district court nor on appeal.”

The Seventh Circuit is the fourth U.S. appellate court to consider the issue of laws protecting minors from gender transition procedures on the merits. The Eighth Circuit (Brandt v. Rutledge) found Arkansas’s law constitutional, while the Sixth (L.W. v. Skrmetti) and Eleventh Circuits (Eknes-Tucker v. Alabama) upheld similar laws in Tennessee, Kentucky, and Alabama. The Eleventh Circuit largely borrowed its reasoning from the Sixth Circuit’s opinion.

The Seventh Circuit had the advantage of consulting all these prior opinions. However, they opted to largely conduct their own independent analysis and only briefly mentioned the other opinions. “Skrmetti and Eknes-Tucker engaged in much deeper and more thorough analyses of the Equal Protection Clause,” with Skrmetti citing 12 Supreme Court precedents, they analyzed, while “Brandt cited only four cases” and “did not discuss or even cite Dobbs and Geduldig,” the two major precedents they used. Consequently, “The Sixth and Eleventh Circuit’s analyses are more persuasive because they comprehensively apply Equal Protection law and better respond to more counterarguments.”

The ACLU has the option to ask the entire Seventh Circuit court to review this panel’s decision “en banc.” The current composition of the Seventh Circuit includes one Reagan appointee, one H.W. Bush appointee, four Trump appointees, and five Biden appointees, resulting in a narrow majority appointed by Republican presidents. En banc review is rare. Normally, the ACLU would also have the option to appeal to the U.S. Supreme Court. However, the U.S. Supreme Court has already agreed to hear a challenge (U.S. v. Skrmetti) this term to the Sixth Circuit’s opinion.

The result of U.S. v. Skrmetti will likely control the outcome of the Seventh Circuit case as well, which may motivate both the parties and the court to pause further proceedings until that decision is issued. However, the Seventh Circuit did issue this decision (and dissent), which made relatively unique arguments, to add to the record the U.S. Supreme Court can consider in reaching their decision. Oral arguments in U.S. v. Skrmetti are scheduled for December 4.